[Cite as Greenview Local School Dist. Bd. of Edn. v. Staffco Constr., Inc.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

THE BOARD OF EDUCATION OF : THE GREENVIEW LOCAL SCHOOL : DISTRICT : C.A. CASE NO. 2016-CA-11 : Plaintiff-Appellant : T.C. NO. 15CV179 : v. : (Civil appeal from : Common Pleas Court) STAFFCO CONSTRUCTION, INC., et : al. : : Defendants-Appellees : : : ...........

OPINION

Rendered on the ___14th___ day of ____October____, 2016.

...........

JACK R. ROSATI, JR., Atty. Reg. No. 0042735 and BENJAMIN B. HYDEN, Atty. Reg. No. 0083265, 100 S. Third Street, Columbus, Ohio 43215 Attorneys for Plaintiff-Appellant

EDWARD J. DOWD, Atty. Reg. No. 0018681 and KEVIN A. LANTZ, Atty. Reg. No. 0063822, 8163 Old Yankee Street, Suite C, Dayton, Ohio 45458 Attorneys for Defendants-Appellees Staffco Construction, Inc. and Federal Insurance Company

.............

DONOVAN, P.J.

{¶ 1} Plaintiff-appellant Board of Education of the Greenview Local School District -2-

(hereinafter “the Board”) appeals a decision of the Greene County Court of Common

Pleas (Civil Division) overruling its motion for a judgment on the pleadings with respect to

defendant-appellees Staffco Construction, Inc. and Federal Insurance Company’s

counterclaims. The Board filed a timely notice of appeal with this Court on March 18,

2016.

{¶ 2} On or about April 14. 2000, Staffco initiated performance on a contract that it

had entered into with the Board regarding a construction project at Greenview High

School. Federal issued a guaranty and a bond securing Staffco’s performance on the

project. Specifically, the contract required Staffco to install a metal wall panel system,

metal roof panel system, composite roof system, and other related construction

components at the new high school. Staffco was the general contractor on the project

between 2000 and 2001. The Board took occupancy of the new high school during

August of 2001. Following the Board’s occupancy, Staffco was required to perform

various repairs at the high school.

{¶ 3} Approximately fourteen years later on March 9, 2015, the Board filed a

complaint alleging that Staffco failed to perform its work at the high school “in full

compliance with the *** [c]ontract or in a workmanlike manner.” The Board further

alleged that “Staffco’s defective and non-conforming work on the Project result[ed] in

ongoing water leaks, moisture issues, and other building envelope issues.”

{¶ 4} Thereafter on May 1, 2015, Staffco and Federal filed an answer and

counterclaim alleging that the Board breached its duty to conduct competent inspections

and repair the work performed by Staffco at the high school. Staffco also argued that

any building defects in the high school are a “proximate consequence of [the Board]’s -3-

breach of its duty to accept from [the architect] designs, plans, specifications, change

orders, results of investigation, authorizations and approvals of work performed, and

certificates for payment for work performed, without defect and/or error.” Essentially,

Staffco argues that it was damaged by the Board’s negligent failure to inspect and

maintain the high school after construction had been completed in 2001.

{¶ 5} On May 28, 2015, the Board filed a motion for a judgment on the pleadings

with respect to Staffco’s counterclaims pursuant to Civ.R. 12(C). On June 30, 2015,

Staffco filed a memorandum in opposition, as well as a motion to strike certain portions

of the Board’s Civ.R. 12(C) motion. Ultimately, the trial court overruled the Board’s

motion for judgment on the pleadings in a brief judgment entry issued on February 26,

2016.

{¶ 6} Initially, we note that the Board advanced several legal arguments in support

of its motion for judgment on the pleadings before the trial court. On appeal, however,

the Board only challenges the trial court’s decision denying its claim for immunity

regarding Staffco’s negligence claims under Chapter 2744 of the Ohio Revised Code.

The Board does not suggest that the trial court erred by not granting its motion for

judgment on the pleadings with respect to Staffco’s additional counterclaims for breach

of contract and indemnification. We further note that the trial court judgment entry

provided no analysis of immunity or how it determined that the Board was not entitled to

the general immunity afforded to political subdivisions under R.C. 2744. Nevertheless,

it is from this judgment that the Board now appeals.

{¶ 7} The Board’s sole assignment of error is as follows:

{¶ 8} “THE TRIAL COURT ERRED IN OVERRULING THE BOARD OF -4-

EDUCATION OF THE GREENVIEW LOCAL SCHOOL DISTRICT’S (GREENVIEW’S)

MOTION FOR JUDGMENT ON THE PLEADINGS AND THEREBY DENYING

GREENVIEW THE BENEFIT OF IMMUNITY UNDER R.C. CHAPTER 2744 FROM

STAFFCO CONSTRUCTION, INC. AND FEDERAL INSURANCE COMPANY’S

NEGLIGENCE CLAIM.”

{¶ 9} Civ.R. 12(C) provides:

Motion for judgment on the pleadings

After the pleadings are closed but within such time as not to delay the trial,

any party may move for judgment on the pleadings.

{¶ 10} A Crim.R. 12(C) motion presents questions of law only, and a determination

of the motion is restricted solely to the allegations in the pleadings. Peterson v.

Teodosio,

,

(1973); State ex rel. Midwest Pride IV, Inc.

V. Pontious,

,

(1996). Essentially, the motion is

a Civ.R. 12(B) motion to dismiss for failure to state a claim on which relief may be granted,

but filed after the pleadings are closed. Steinbrink v. Greenon Local School District, 2d

Dist. Clark No. 11CA0050,

.

{¶ 11} A Civ.R. 12(C) motion goes to all the pleadings, and may be used to test

the substantive sufficiency of any defensive pleading. Baldwin's Ohio Civil Practice,

Section 12:10 (2004 Ed.). In the determination of a Civ.R. 12(C) motion, the nonmoving

party is entitled to have all the material allegations in the pleadings, with all reasonable

inferences to be drawn therefrom, construed in his favor as true. Steinbrink, 2d Dist. Clark

No. 11CA0050,

.

{¶ 12} Unlike a Civ.R. 56 motion for summary judgment, which authorizes the -5-

court to evaluate evidentiary materials submitted for their probative worth, Civ.R.

12(C) imposes a structural test: whether on their face the pleadings foreclose the relief

requested. For example, if a statute of limitations defense is pleaded and the pleadings

unequivocally demonstrate that the action was commenced after the limitations period

expired, Civ.R. 12(C) relief is appropriate.

.

{¶ 13} Ordinarily, an order overruling or denying a Civ.R. 12(B) or (C) motion is not

a final order because it does not determine the action and prevent a judgment. See R.C.

2505.02(B)(1). An exception exists with respect to an order that “[d]enies a motion in

which a political subdivision or its employee seeks immunity under R.C. Chapter 2744,

because that order denies the benefit of an alleged immunity and thus is a final,

appealable order pursuant to R.C. 2744.02(C).” Hubbell v. City of Xenia,

, 2007–Ohio–4839,

.

{¶ 14} The Political Subdivision Tort Liability Act, as codified in R.C. Chapter 2744,

sets forth a three-tiered analysis for determining whether a political subdivision is immune

from liability. First, R.C. 2744.02(A) states the general rule of immunity that a political

subdivision is immune from liability incurred in performing either a governmental function

or proprietary function. See also Colbert v. Cleveland,

, 2003-Ohio-

3319,

. However, the immunity afforded in R.C. 2744.02(A)(1) is not

absolute. See R.C. 2744.02(B).

{¶ 15} “The second tier of the analysis requires a court to determine whether any

of the five exceptions to immunity listed in R .C. 2744.02(B) apply to expose the political

subdivision to liability.”

. “If any of the exceptions to immunity in R.C.

2744.02(B) do apply and no defense in that section protects the political subdivision from -6-

liability, then the third tier of the analysis requires a court to determine whether any of the

defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense

against liability.” Id. at ¶ 9. See also Cater v. Cleveland,

,

(1998), abrogated on other grounds, M.H. v. Cuyahoga Falls,

,

,

.

{¶ 16} “Political subdivision” or “subdivision means a ... body both corporate and

politic responsible for governmental activities in a geographic area smaller than that of

the state.” R .C. 2744.01(F). Boards of education and public school districts are political

subdivisions for purposes of R.C. Chapter 2744. Brown v. Columbus Board of

Education,

(S.D.Ohio 2009). Greenview Local School District and

its Board are therefore entitled to the benefit of immunity from civil liability in tort for which

R.C. Chapter 2744 provides, subject to any applicable exception. Additionally, neither

party disputes that the buildings where the high school is located are used in connection

with a government function, i.e., public education.

{¶ 17} Having determined that the general grant of immunity applies to the Board,

we now turn to whether any exceptions to immunity listed in R.C. 2744.02(B) apply to

maintain Staffco’s negligence claim. Specifically, Staffco argues that the immunity

exception found in R.C. 2744.02(B)(4) applies, which provides that “political subdivisions

are liable for injury, death, or loss to persons or property that is caused by the negligence

of their employees and that occurs within or on the grounds of buildings that are used in

connection with the performance of a governmental function * * *.” Pursuant to R.C.

2744.02(B)(4), Staffco contends that it has sufficiently alleged in its counterclaim that it

has suffered damages because of the Board’s negligent failure to conduct competent -7-

inspections and failure to maintain and repair conditions that existed at the high school

after the original construction contract was fulfilled in 2001. Staffco further argues that it

suffered damages because of the physical defects in the high school building structures

caused by the negligence of the Board’s employees.

{¶ 18} However, Staffco does not dispute that the only damages it suffered as a

result of the Board’s alleged negligence are the money expenditures it incurred to perform

remedial repairs to the high school buildings after the original work had been completed.

Put another way, the only damages that Staffco and Federal assert that they suffered

from the Board’s negligence were purely economic losses.

{¶ 19} Recently, in Federal Insurance Co. v. Fredericks,

,

(2d Dist.), we stated the following:

“[E]conomic losses are intangible losses that do not arise from tangible

physical harm to persons or property.” RWP, Inc. v. Fabrizi Trucking &

Paving Co., 8th Dist. Cuyahoga No. 87382,

,

citing Columbia Gas of Ohio v. Crestline Paving & Excavating Co., 6th Dist.

Lucas No. L–02–1093,

, and Floor Craft Floor Covering, Inc.

v. Parma Comm. Gen. Hosp.,

,

(1990).

(Other citation omitted.) “Thus, where only economic losses are asserted,

damages may be recovered only in contract; there can be no recovery in

negligence due to the lack of physical harm to persons and tangible

things.” RWP, Inc. at ¶ 21, citing Queen City Terminals v. Gen. Am. Transp.

Corp.,

,

(1995). (Other citations omitted.)

Id. at ¶ 23. -8-

{¶ 20} Furthermore, in Corporex Dev. & Constr. Mgt., Inc. v. Shook, Inc.,

,

,

, the Supreme Court of Ohio noted that:

The economic-loss rule generally prevents recovery in tort of damages for

purely economic loss. See Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins.

Co. (1989),

,

; Floor Craft Floor

Covering, Inc. v. Parma Community Gen. Hosp. Assn. (1990),

,

. “ ‘[T]he well-established general rule is that a

plaintiff who has suffered only economic loss due to another's negligence

has not been injured in a manner which is legally cognizable or

compensable.’ ” Chemtrol,

,

,

quoting Nebraska Innkeepers, Inc. v. Pittsburgh–Des Moines Corp. (Iowa

1984),

. See, also, Floor Craft,

,

. This rule stems from the recognition of a balance between tort

law, designed to redress losses suffered by breach of a duty imposed by

law to protect societal interests, and contract law, which holds that “parties

to a commercial transaction should remain free to govern their own

affairs.” Chemtrol,

,

. See, also, Floor

Craft,

,

, quoting Sensenbrenner v. Rust,

Orling & Neale Architects, Inc. (1988),

,

. “ ‘Tort law is not designed * * * to compensate parties for losses suffered

as a result of a breach of duties assumed only by agreement. That type of

compensation necessitates an analysis of the damages which were within

the contemplation of the parties when framing their agreement. It remains -9-

the particular province of the law of contracts.’ ” Floor Craft,

,

, quoting Sensenbrenner,

,

.

Corporex at ¶ 6.

{¶ 21} In light of the economic loss rule, Staffco’s decision to spend money on

remedial repairs to the high school is not a legally cognizable injury in tort law. We also

note that the cases relied upon by Staffco to support its conclusion that the “property” as

used in R.C. 2744.02(B)(4) includes purely economic loss are clearly distinguishable. In

Hinkle v. Cornwell Quality Tool Company,

,

(9th

Dist. 1987), the appellate court discussed the circumstances regarding when a claim for

conversion of money will lie. Hinkle provides no support for Staffco’s argument that

economic loss, standing alone, constitutes sufficient damages necessary to implicate one

of the exceptions to civil immunity codified in R.C. 2744.02(B). In Stengel v. Columbus,

,

(10th Dist. 1991), the court stated that a money

judgment is satisfied from the property of the judgment debtor. Nevertheless, the fact

that a judgment can be satisfied through the tangible property of a debtor does not require

us to conclude that money is the equivalent of property under R.C. 2744. Where only

economic losses are asserted, as is the case here, damages may be recovered only in

contract. There can be no recovery in negligence due to the lack of physical harm to

persons and tangible things. Accordingly, the purely economic damages asserted by

Staffco cannot be used as basis upon which to assert an exception to the Board’s

immunity to tort claims under R.C. 2744.02(B)(4). Therefore, the trial court erred when

it overruled the Board’s motion for judgment on the pleadings with respect to Staffco’s -10-

counterclaim for negligence.

{¶ 22} Lastly, we find that Federal has no independent cause of action in tort

against the Board. While R.C. 2744.09(D) may preserve Federal’s right to subrogation

against Staffco, it does not provide Federal with an independent right to pursue any claims

against the Board. Since R.C. 2744.02(A) bars Staffco from pursuing a negligence claim

against the Board based upon purely economic damages, Federal, as surety and

guarantor of the original construction contract, is likewise barred from pursuing a

negligence claim.

{¶ 23} The Board’s sole assignment of error is sustained.

{¶ 24} The Board’s sole assignment of error having been sustained, the judgment

of the trial court is reversed with respect to Staffco and Federal’s counterclaim for

negligence. This matter is therefore remanded to the trial court for proceedings

consistent with this opinion.

..........

WELBAUM, J., concurs.

FROELICH, J., concurs in judgment only.

Copies mailed to:

Jack R. Rosati, Jr. Benjamin B. Hyden Edward J. Dowd Kevin A. Lantz Fredric Young David Olson Luke Busam James Featherstone Lowell Woods Richard Garner David Orlandini Sunny Horacek -11-

David Patterson Frederick Bills Joshua Bills Glasier Building Systems NU Roof Systems, Inc. Hon. Stephen A. Wolaver